In South Africa, trusts are governed by the Trust Property Control Act of 1988, and must be registered by the Master of the High Court. The trust division of the Master’s office maintains a trust file and controls any queries regarding trusts.
The administration of trusts is governed by the provisions of the Trust Property Control Act no 57/1988.
There are two types of trusts – the living trust (inter-vivos trust) and the testamentary trust. The living trust is created by agreement between living people; the testamentary trust is used to protect assets of minors or people who aren’t capable of looking after their own interests and is derived from the valid will of a deceased person.
Registering a living trust
Register the living trust at the office of the Master in whose area of jurisdiction the majority of the assets to vest in the trustees are situated. If more than one Master has jurisdiction over the trust assets, final jurisdiction will rest with the Master of the office where the trust was first registered.
Submit the following documents to the Master:
- A completed Acceptance of Trusteeship application form for each trustee.
- A completed form J344: Bond of Security if required by the Master for each trustee.
- All the requirements listened in FormJM21: Memorandum.
- The original trust deed or a copy thereof, certified by a notary.
- R100 – paid in cash to the Department of Justice banking account or at any Magistrate Court, stating the relevant reference number as set out in Chief Master’s Directive 2012-01. Proof of payment must be attached to the submitted documents.
- The Acceptance of Auditor form, if applicable – J405.
Registering a testamentary trust
Complete and submit the following documents:
- An Acceptance of Trusteeship for each trustee
- A bond of security by the trustees, if required by the Master – Form J344E
- All the requirements listened in Form JM21
The last will of the deceased will serve as the trust documents, and no fees are payable.
On receipt of all the documents required, the Master shall issue the nominated trustees with letters of authority to administer the trust. No nominated trustee may act as trustee without written authorisation by the Master.
All financial statements are to be kept and, if asked to do so, submitted to the Master. This may be required if the Master receives any queries about the administration of the trust.
The above mentioned forms are all accessible on the official website for the Department of Justice and Constitutional Development: http://www.justice.gov.za/master/forms.html#trust
Read related article: Seven reasons to set up a trust.